2.0 Analysis 2.1 Introduction Fishing vessels like the S.S. BROTHERS are subject to a combination of federal and provincial regulations and one reason the TSB investigated this occurrence was to determine the extent to which safety could have been compromised in this respect by regulatory gaps or overlaps. The accident involved a fishing activity where the vessel was engaged in the operation of catching fish and transporting the fish to port. A serious injury or death of a crew member aboard a vessel at sea, particularly a fishing vessel with a small crew, can jeopardize the safety of the vessel by removing that crew member from watchkeeping, emergency and other duties. When a mishap occurs at a delicate stage of a fishing operation, even though the injury sustained may be minor, there is a potential for the situation to compound such that it can seriously jeopardize the safety of the vessel and the crew. Instances are on record where vessels have capsized when the process of hauling in their catch has been interrupted. The analysis section therefore focusses on those issues relating to the jurisdictional aspects, the behaviour of the crew member and the work environment on board the vessel, which put at risk the ability of the crew to safely perform their operational duties. 2.2 Impact of Working and Environmental Conditions on Safety Because the winch used to retrieve the scallop rake is not fitted with an automatic spooling device, a member of the crew ensures that the wire is guided onto the winch drum. Due to the position of the winch controls, it is not possible for one person to operate the winch and to simultaneously guide the wire. While two crew members began the operation of hauling in the rake, the person at the controls left his position to begin washing down the deck. Consequently, he was not in position to perform his operating duties when the 25-fathom warning mark appeared and he did not have ready access to the controls in the event of an emergency. When the deck-hand guiding the wire onto the drum saw the 25-fathom mark on the wire (which serves as a warning that the rake is close to the surface), he attempted to climb over the winch to reach the controls. Data collected during the investigation established that deck-hand No. 1. was in a hurry and that although he considered climbing over the winch a dangerous thing to do (particularly given that the deck was wet and his rubber boots were slippery), he was willing to accept the risk and that this was not the first time he had climbed over the winch to access the controls. Time pressure is a common stress factor influencing human performance.[11] When people are in a hurry, they tend to accept higher levels of risk than they would normally. The deck-hand's willingness to accept the self-acknowledged risk of climbing over the winch is consistent with the behaviour of someone who is in a hurry. People who successfully perform risky acts on the job often change their attitudes or opinions about the personal risk involved. They tend to discount the risk and come to believe that the activity is not risky, or they tend to develop a sense of their own invulnerability. The more often they are successful at the dangerous act, the more likely they are to believe that, although the practice may be dangerous in a general sense, nothing bad will happen to them. This attitude can lead them to repeat the act, and a vicious circle can be set up. The more often they do it, the more they feel justified in their sense of invulnerability. The more comfortable they become with the sense of invulnerability, the more likely they are to reduce the margin for safety and engage in riskier behaviour.[12] In the context of this occurrence, because the deck-hand had climbed over the winch in the past without being injured, he was willing to accept the personal risk involved. Deliberate decisions to act against rules occur everyday as people regularly modify, or do not strictly comply with, work procedures. Two factors, in particular, appear to be important in shaping habitual [routine] violations: (a) the natural human tendency to take the path of least effort; and (b) a relatively indifferent work environment (i.e., one that rarely punishes violations or rewards observance).[13] In this case, the deck-hand was not only taking the quickest and most convenient path to reach the winch controls, he was taking a familiar path; one where he had suffered neither negative consequences nor punitive action in the past. The factual information gathered during this investigation suggests that both deck-hands were suffering from fatigue. The irregular work/rest schedule maintained throughout the voyage was in conflict with their circadian rhythms and did not allow the deck-hands to obtain either the quantity or quality of sleep required. At best, they slept 18 hours in the 72 hours prior to the accident. In addition, because one of the three-hour scheduled off-duty periods (during which the deck-hands had an opportunity to sleep) coincided with a circadian rhythm period of wakefulness, it is probable that the quality of sleep obtained was poor and non-restorative. Both deck-hands exhibited behaviour which appears to have been based on flawed logic and/or poor judgement and an increased propensity for risk-taking. Despite safety procedures to the contrary, the deck-hand assigned to operate the winch left his position to perform the non-essential task of washing down the deck. The deck-hand who was guiding the incoming wire onto the winch chose to climb over the winch to reach the controls even though other options were available to him. Because the accident occurred near the end of a voyage during which the deck-hands had worked a nine-hours-on/three-hours-off cycle, the disruption of normal circadian rhythms and the accumulation of a sleep debt would have reduced the deck-hands' normal perception of risk. It is likely that fatigue had an impact on the decision-making processes of both these persons. One deck-hand decided that washing down the deck was a more important task than controlling the winch and the other did not appreciate the risk in climbing over the winch. 2.3 Effectiveness of Provincial Labour Legislation and Safety The inspection requirement in the labour legislation is consistent with the principle that the health, safety and well-being of workers is achieved through the participation of the workers, the employers and, where applicable, their associations by establishing their accountability. The mechanism for enforcement is, for the most part, self-enforcement. The application of the self-enforcement principle presupposes that the employer has in-depth knowledge of complex labour legislation and the operational environment, and has sufficient resources and the appropriate skills to educate the workers. This principle works well in many shore-based industrial establishments, but there are few operators of fishing vessels whose scale of operation is sufficiently large that resources can be allocated to meet these objectives. For the most part, fishing vessels, particularly small fishing vessels (some 27,500 across Canada) are operated by individuals who may own and operate the vessel with a few employees. There is no requirement for the owner to possess in-depth technical/operational knowledge of fishing operations or for the operator to possess academic qualifications, nor is a competency test required before a person can engage in fishing activities. The complexity of the regulations does not lend them to being readily understood by those to whom they apply. The need has been recognized (for example, by the CSA regulations, the CLC Part II and some provincial industry-specific regulations) for labour regulations, specific to the shipping industry, that also address fishing vessel operations. Simplicity of regulations in the fishing industry is crucial to help ensure self-enforcement. Only the province of British Columbia has recognized this need for simplicity in the regulations, as reflected in the (B.C.) Fishing Vessel Operations Regulations; the existing legislation in most other provinces does not reflect this need. The complexity of the current (non-sector-specific) labour legislation calls into question the practicality of self-enforcement as an enforcement tool for fishing vessels. 2.4 The Jurisdictional Issue and its Impact on Safety The fishing vessel is subject to both federal and provincial regulations which, in aggregate, do not provide a comprehensive level of regulatory oversight locally or across Canada. TCMS provides fishermen with a national regulatory system that applies to the structural and operational safety of the vessel, and compliance with which ensures that the vessel can be navigated safely.[14] TCMS also administers the Safe Working Practices Regulations which provide direction and guidance to a vessel's crew. However, the national regulatory system does not establish standards for those parts of the vessel employed in the business of fishing nor does it establish standards for how a fisherman is to use those parts. TCMS does have expertise in this area. Inspectors apply the Tackle Regulations, which apply to equipment on vessels other than fishing vessels. TCMS has published bulletins and booklets to advise fishermen on safe working practices. Provincial governments, on the other hand, have the responsibility to ensure that the business of fishing is conducted in a safe manner. However, the level of provincial safety legislation and regulations--as applicable to fishing vessels--varies among provinces and territories, from the minimal to the comprehensive. Provinces and territories, for the most part, do not regularly conduct inspections of working areas, and primarily tend to react to accidents rather than adopt a pro-active, preventative role. The result of this division of responsibility is that only part of a fishing vessel is subject to TCMS regulations and inspection. Given the current level of provincial safety legislation, regulation and inspection of fishing vessel deck work spaces and equipment used in the business of fishing, these spaces and equipment are not effectively monitored to establish reasonable safety standards. TCMS has established guidelines that encourage inspectors to provide advice on fishing equipment and its use; the operator is not required to implement the suggested advice. Furthermore, there is no official understanding or undertaking that TCMS notify provincial ministries of labour when such advice is given. The lack of a coordinated approach, involving the two jurisdictions, has the potential to compromise the overall safety of the vessel; fishing activity in these circumstances may be in conflict with the safe operation of the vessel, to the detriment of the safety of the vessel and the crew. Although some provincial governments are implementing programs to train operators/crews in the safe use of fishing equipment, there is at present no such program in place. 3.0 Conclusions 3.1 Findings The winch used to haul in the scallop rake was fitted with neither a spooling mechanism nor machinery guards. As the scallop rake was being recovered, one deck-hand was at the controls of the winch while another guided the incoming wire onto the winch drum. While the scallop rake was being winched up, the deck-hand at the controls left his post to wash down the deck and consequently no longer had easy access to the winch controls. Upon sighting a mark on the wire which indicated that the scallop rake was nearing the surface, the deck-hand guiding the wire decided to climb over the winch to reach the winch controls. The deck-hand lost his footing on the slippery surfaces of the winch and fell to the deck; his right foot was drawn onto the drum and crushed by the wire. The work/rest schedule in force aboard the vessel most probably caused fatigue in the deck-hands and affected their capacity to make reasoned decisions. The Canada Shipping Act and its regulations set safety standards relating to the structural and operational safety of all vessels, irrespective of type, except for that equipment and work space used in the business of fishing. During her 15 years of operation the vessel had been issued a Transport Canada Ship Inspection Certificate. There is no written record that either the vessel's scallop rake hauling winch or its operation was ever inspected by the federal authority, as this was not a requirement for certification. Provincial authorities are responsible for the regulatory oversight of the business of fishing, work deck space and equipment, but there is no written record that the scallop rake hauling winch was ever inspected by the provincial authorities. The self-enforcement principle of some provincial labour legislation, in the context of small fishing vessel safety, is difficult to apply, due to the volume and complexity of the non sector-specific legislation. The lack of a coordinated approach between Transport Canada and provincial ministries of labour results in each operating in isolation, and may result in potentially unsafe conditions and practices going undetected. As of June 1999, with the exception of British Columbia and Ontario, provinces do not regularly inspect either the work deck space or the machinery used for the business of fishing but, for the most part, tend to react to accidents rather than to adopt a pro-active, preventative role. Although some provincial governments are implementing programs to train operators/crew in the safe use of fishing equipment, there is at present no such program in place. 3.2 Causes The accident was caused by the deck-hand attempting to step over the winch to gain access to the controls. Factors contributing to the accident were: the deck winch was uninspected and not fitted with a machinery guard; the deck-hand was operating the winch alone; and the deck and the surfaces of the winch were slippery. It is also likely that the deck-hand's ability to make a reasoned decision on the safe operation of the winch was adversely affected by fatigue caused by his work/rest schedule. 4.0 Safety Action 4.1 Action Taken 4.1.1 Nova Scotia Department of Labour Orders Once informed of the TSB investigation, the Nova Scotia Department of Labour (NSDL) contacted the fishing company and initiated its own industrial safety investigation. Under the authority of the Occupational Health and Safety Act (OHSA) of Nova Scotia, the NSDL issued two safety orders (260365-01 and 02). The first order dealt with Regulation 10 117-A, Industrial Safety Machinery and Machinery Guarding.The NSDL ordered Yarmouth Sea Products Ltd. to ensure that: ...scallop drag cable winches are properly guarded to ensure that no one could get caught in the cable and/or winch. And the employer shall ensure that cables and blocks on the booms are equipped with a safety block or bar to prevent the block and/or cable from falling to the deck. The vessels involved are S.S. BROTHERS, VINNA SHANE, LADY SARAH IV, GAIL TROY and RYCO. A few days after receiving the orders, a machinist of Yarmouth Sea Products Ltd. installed a guard at the front of the winch and a cage over the cable at the winch of the S.S. BROTHERS to provide a barrier between the attendant and the winch. Similar guards have also been fitted on other vessels managed by the fishing company. The NSDL inspector also recommended that hydraulic valves for the winches should be equipped with a centring device to ensure whenever the winch is engaged if the lever is released the valve goes back to centre. The second order was made under OHSA Regulation 63 1-A, Notice of Accident at the Workplace: The employer shall ensure that the NSDL is notified within seven days of any accident that occasions bodily injury to an employee. Following the occurrence and discussions with NSDL, the TSB provided statistical data: an overview of the occupational accidents aboard fishing vessels. The NSDL issued a Hazard Alert concerning the guarding of the winches. The alert was distributed through the fishing sector in the province and NSDL's occupational health and safety contacts in other jurisdictions. 4.1.2 Pro-active Inspection by Provinces Since the occurrence, Ontario has taken measures to initiate some level of pro-active inspection program for fishing vessels; the 1998/99 target was set at inspecting 154 vessels. 4.1.3 Other Safety Initiatives by Provinces The Ontario Ministry of Labour is developing a partnership with the Ontario Commercial Fisheries' Association to communicate health and safety information to its membership and promote self-reliance to further safety. 4.1.4 Jurisdictional Overlap in the Inspection of Commercial Fishing Vessels In spring of 1998 the representatives of TC and the Ontario Ministry of Labour met to discuss areas of jurisdictional overlap in the inspection of commercial fishing vessels. Also, Quebec Ministry of Labour representatives established contact with representatives of TC, the Department of Fisheries and Oceans and the Canadian Coast Guard in the spirit of co-operation. However, to date, there is no formal agreement in place between TC and the provincial/territorial departments of labour. 4.2 Action Required 4.2.1 Workplace Safety on Fishing Vessels Safety of fishing vessels and their crews is governed by both federal and provincial regulations. Transport Canada Marine Safety (TCMS) provides fishermen with a national regulatory framework that applies to the structural and operational safety of the vessel. TCMS also administers the Safe Working Practices Regulations, which provide direction and guidance to a vessel's crew on safe operating practices and procedures. The workplace safety of crews, while they are engaged in the business of fishing, is not within federal jurisdiction. Provincial governments have the responsibility to ensure that the business of fishing is conducted in a safe manner. However, provincial regulatory framework--as applicable to fishing vessel safety--is not consistent across the country, and some provinces still do not have adequate fishing-sector-specific provisions in place. In addition, due to the lack of resources, the provinces do not routinely conduct preventative safety inspections of work areas and practices, but generally rely on self-enforcement by the employer and/or employees. In the fishing industry, most provinces apply generic labour legislation, which is often complex and not easily understood by the fishermen to whom it applies.[15] As a result, the legislation is not effective as a self-enforcement mechanism; work spaces and equipment aboard fishing vessels are not being effectively monitored, nor are unsafe conditions being effectively targeted for corrective action. The occurrence on the S.S. BROTHERS is not an isolated incident; the absence of an effective enforcement mechanism has permitted unsafe conditions to exist for several years. Indeed, as indicated in the report, there were over 150 reportable accidents on board fishing vessels for the period 1992-1996.[16] Over 40 injuries, and at least 3 fatalities, resulted from accidents involving fishing gear and moving machinery.[17] The Board believes that the overall safe operation of a vessel (which is within federal jurisdiction) often depends on the level of safety in the business of fishing (which is within provincial jurisdiction.) Typically, fishing vessels are crewed with a small complement, working long hours and performing multiple tasks. Hence, in the event of the injury or incapacitation of any of the crew, the overall safe operation of the vessel is adversely affected. The TSB database contains information on several accidents where practices associated with fishing operations have resulted in the loss of the vessel. In 1994, while salmon-fishing off Quadra Island, B.C., the seiner LOUVEL III capsized when the net being hauled on board became hung-up on the starboard side vertical roller, causing the vessel to acquire a large list and to downflood (TSB Report No. M94W0069). Again in 1994, the SHAUNA-CHRISTI, while fishing for mackerel off Rocky Harbour, Newfoundland, capsized suddenly when the amount of fish in the net pursed and secured to the starboard side was underestimated, which caused the vessel to heel and downflood through an open hatch (TSB Report No. M94N0020). In 1995 in Johnstone Strait, B.C., the INSKIP suddenly capsized when the weight of a large catch was transferred to the derrick head, which raised the vessel's centre of gravity and resulted in a loss of stability (TSB Report No. M95W0121). In 1996 the fishing vessel BOUNTY HUNTER capsized and sank off Estevan Point, B.C., when the port warp parted. With the engine set at full power, the vessel heeled and the deck flooded (TSB Report No. M96W0062). The Board understands that periodic inspections are routinely carried out by TCMS, while inspections under the provincial labour legislation are infrequent. As such, the jurisdictional division between the two levels of government over regulatory provisions and enforcement may allow unsafe acts and conditions on fishing vessels to persist. The Board believes that enhanced workplace safety and overall operational safety of fishing vessels could be better achieved through an approach that is co-ordinated and harmonized between the federal and provincial authorities. The Board therefore recommends that: The Department of Transport coordinate with appropriate provincial authorities to conduct a review of existing safety regulations administered by both levels of government to help ensure that the regulatory provisions pertaining to workplace safety on fishing vessels and overall operational safety are harmonized and enforced to achieve their intended objectives. The provinces' generic labour legislation is complex and may not be easily understood by those to whom it applies. Given that the provinces rely heavily on self-enforcement, the Board is concerned that the complexity of the legislation hinders effective compliance by fishermen to achieve the legislation's intended safety objectives. Therefore, in the interim, the Board recommends that: The provinces review their workplace legislation with a view to presenting it in a manner that will be readily understood by those to whom it applies, to help ensure that the enforcement mechanism and the regulatory regime complement each other. 4.3 Safety Concern 4.3.1 Hours of Rest for Crews on Fishing Vessels The Board has expressed concern previously about the number of marine occurrences involving Canadian fishing vessels in which crew fatigue has been an issue (TSB Report Nos. M90N5015, M92W1066, M93M0008). The Board notes with concern that the work schedule and working practices on the S.S. BROTHERS were conducive to crew fatigue, and very likely contributed to this occurrence. It is a well-established fact that fatigue impairs judgement, reduces concentration, slows reaction time and leads to errors due to a lack of attention, alertness, and vigilance. The current regulations affecting hours of rest (the Crewing Regulations) do not apply to personnel employed on Canadian fishing vessels of less than 100 gross tons--such as the S.S. BROTHERS and smaller vessels--which constitute the majority of vessels involved in similar occurrences. It is hoped that effective implementation of such regulations will reduce the likelihood of similar occurrences involving fishing vessels over 100 tons. While it is recognised that prescribing and enforcing mandatory rest periods on fishing vessels would be difficult, the Board hopes that this will not preclude a full exploration of other means of influencing behaviour. For instance, there are currently no programs to make fishermen aware of the effects that fatigue can have on job performance and safety, nor of the effects that inadequate work/rest schedules, off-duty activities, eating and drinking habits, sleep environment and scheduling, and exercise can have on fatigue. The Board is concerned that crew members on the majority of small fishing vessels continue to work excessive hours, negatively affecting their own safety and that of others.